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Hasan’s Article 32 hearing open to public

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Posted: Wednesday, September 22, 2010 12:00 pm | Updated: 9:16 am, Thu Aug 16, 2012.

By Amanda Kim Stairrett

Fort Hood Herald

Maj. Nidal Malik Hasan's request that his Article 32 hearing be closed to the public and press was denied Thursday.

Col. James Pohl, the officer appointed to preside over Hasan's Article 32 hearing, was presented with three motions by Hasan's three-man defense team, led by retired Col. John Galligan, during a preliminary hearing for the pre-trial investigation.

Pohl was also asked to exclude autopsy reports and delay the Article 32 to develop evidence for the defense's case.

Thursday was Hasan's second appearance in Fort Hood court, and it was referred to as a "status conference hearing." Hasan was brought into court in a wheelchair pushed by a Fort Hood civilian police officer. He wore an Army Combat Uniform and a green Army fleece cap.

Galligan would not comment on Hasan's physical or mental condition when questioned later by reporters.

The Article 32 start date has changed twice at the defense's request. It was originally scheduled to begin March 1, but moved to June 1. That date was pushed forward four months during the June 1 hearing. That was later changed to Oct. 12 to ensure witness travel and other funding was not affected by the beginning of the federal government's new fiscal year on Oct. 1, according to information from Fort Hood.

Witness testimony will be heard Oct. 12, according to information from Fort Hood, and is expected to last "multiple weeks."

Hasan has the right to wave the Article 32 hearing, which is required in military cases to determine if there is enough evidence to continue to a court-martial. He is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the Nov. 5 shooting at Fort Hood's Soldier Readiness Processing Center.

An Article 32 is similar to a civilian preliminary hearing, according to information from the U.S. Army. Galligan on Thursday argued that spectators and the press should be barred from the Article 32 because they wouldn't be allowed in the courtroom during its civilian equivalent. Media and the public are allowed to observe Article 32 proceedings.

Galligan cited several reasons for the motion, saying press coverage would taint possible panel, or jury, members and the hearing's due process would be adversely affected.

Pohl is the Article 32's investigating officer and will make recommendations as the case moves into the court-martial phase. He questioned how he and the military justice system would be affected by closing the hearing. The defense responded that it didn't know if it necessarily would, but Galligan pointed out that it was essential they take steps now to ensure a fair and public trial.

Pohl again questioned how closing the hearing would ensure the trial was fair and public, and Galligan said continued media coverage would be damaging.

He provided evidence of a recent Google search using Hasan's name. Results totaled in the millions, Galligan said, referring to coverage surrounding the Nov. 5 incident and subsequent hearings as a "media frenzy."

Galligan further argued his point by saying officials at the highest levels of government - all the way to the president - were involved in the backdrop of the case, adding to its high-profile nature. Hasan's rights must be protected, Galligan said.

Prosecutors were quick to point out that Galligan was quoted in many of the Google search articles he presented. Galligan created a pool awash in media attention and now wants to extricate himself from it, said Col. Michael Mulligan, the case's lead prosecutor.

Galligan said later he will appeal Pohl's decision to the special court-martial convening authority, Col. Morgan Lamb. Lamb has the power to overturn the ruling.

Also during Thursday's hearing:

Autopsy reports presented by the prosecution will not be excluded, as the defense had requested. The defense attempted to get a government-funded expert witness to examine the reports' findings and possibly testify regarding trajectory and victims' suffering. When that was denied, the team sought to exclude the reports. Prosecutors said they wanted the reports admitted into evidence to show that 13 individuals died as the result of gunshot wounds and bullets were removed from those victims for testing.

Galligan argued that admitting the reports into evidence now would mean they could be used for other deductions in the future. Pohl said if testimony surrounding the reports went beyond the prosecution's original reasoning, he would not consider it.

Pohl told defense attorneys they were getting ahead of themselves and confusing court-martial issues with Article 32 issues. Pohl only presides over the Article 32 hearing.

The defense asked for an undetermined delay at an undetermined time so they could arranged for a particular New York doctor to perform a physical exam on Hasan. The finding would be used in the Article 32, but defense attorneys had yet to schedule an exam because of the doctor's schedule. Pohl said he would not grant a delay without having a specific date and the issue would be readdressed when the defense set an appointment with the doctor.

Pohl ruled that no testimony would be taken from Nov. 3 to 8 so the hearing wouldn't coincide with any one-year anniversary observances of the shooting.

Several family members of victims were present during the hearing.

Contact Amanda Kim Stairrett at astair@kdhnews.com or (254) 501-7547. Follow her on Twitter at KDHmilitary or www.facebook.com/astairrett.

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